Biden Administration Mounts Losses in Supreme Court

The administration suffered two defeats this week, the latest in a series

Kevin Daley • August 28, 2021 4:59 am

The Biden administration is struggling to find its footing in the Supreme Court.

Thursday night’s decision ending the federal ban on evictions is the latest in a string of judicial reversals for President Joe Biden. Earlier in the week, the Court ordered the president to maintain the Trump-era “Remain in Mexico” policy for asylum-seekers. This spring, Biden appointees at the Justice Department blundered into a unanimous defeat in a little-noticed criminal sentencing dispute.

In some cases, the errors were self-inflicted. The administration has enacted policies knowing they were on uncertain legal ground, doubled down on assertions picked apart in the lower federal courts, and flipped positions in pending cases only to lose by a lopsided margin. In an unusual delay, the president did not nominate a solicitor general, the government’s top representative in the High Court, until Aug. 11.

Thursday’s decision followed a June dispute over an earlier iteration of the eviction ban, in which the Supreme Court signaled the moratorium was unlawful. The Centers for Disease Control, with backing from the White House, chose to extend the eviction ban anyway, inviting a high stakes confrontation over the scope of its authority.

The bet was a bad one, as Thursday’s decision will hamstring policymakers going forward. The CDC suspended evictions under a provision of the Public Health Service Act that empowers the agency to stop the spread of communicable diseases among the states. The High Court construed that provision narrowly on Thursday, saying it only authorizes actions that directly relate to transmission reduction, such as inspections or pest extermination. But it does not, the Court stressed, sanction any policy that conceivably slows the spread of disease.

The administration also seemed to misfire in its emergency appeal over a district court injunction that required it to maintain the Migrant Protection Protocols. The protocols require asylum-seekers to wait in Mexico while U.S. immigration authorities process their applications. Fighting the injunction before the Fifth U.S. Circuit Court of Appeals, the government accused the district court of ordering it to “reestablish the entire infrastructure upon which [the Migrant Protection Protocols] was built.” It also said the injunction interfered with ongoing diplomatic business with Mexico.

A three-judge panel of the Fifth Circuit picked apart both points in its Aug. 19 decision maintaining the injunction. The court said the first was a “straw man” because the injunction only requires the government to make good-faith efforts at restarting the protocols. It does not mandate full and immediate implementation.

The argument as to interference with foreign policy failed for the same reason, the Fifth Circuit said.

“If the government’s good-faith efforts to implement MPP are thwarted by Mexico, it nonetheless will be in compliance with the district court’s order,” the decision reads.

Nevertheless, government lawyers insisted on both points at the top of their emergency appeal to the High Court. In the opening passages of the appeal, the government claimed the injunction requires it “to abruptly reinstate a broad and controversial immigration enforcement program” that could precipitate “a humanitarian and diplomatic emergency.”

Logistical burdens and foreign policy complications can go a long way toward proving irreparable harm, one of the showings the government had to make to win its appeal. But it was likely a misstep to open by highlighting two arguments the lower court dismissed as intentional misrepresentations.

The administration’s first misstep in the Supreme Court came just two months after taking office in a criminal sentencing dispute. The case, originally set to be argued in April, asked whether low-level crack offenders were entitled to reduced sentences under the First Step Act. The Trump Justice Department argued they were not.

The Biden Justice Department took a different view and flipped positions, choosing to back the convicts seeking a lighter sentence. The department notified the Court of its change one month before the argument—prompting a rare change to the Court’s schedule—on the same day it was due to submit its main legal brief.

New administrations have some leeway to change the litigation positions taken by their predecessors. But the department’s late-breaking announcement seemed to make waves among the justices at the rescheduled hearing in May. The government lost unanimously.

In a brisk opinion for an eight-justice majority, Justice Clarence Thomas wrote that the government’s revised argument “defies common parlance” and contradicted the “clear text.” Justice Sonia Sotomayor wrote separately to say the law required the result the Court reached, but she urged Congress to amend the First Step Act and grant clemency to low-level offenders.

The solicitor general’s office was vacant throughout, filled by two different attorneys on an acting basis. The president finally named DOJ veteran Elizabeth Prelogar to the post on August 11. Justice Department colleagues reportedly favored her throughout, but the White House was searching for a more diverse candidate.